Separation of Powers in Constitution of India

In India, separation of functions is followed and not of powers and hence, the principle is not abided in its rigidity. In India, strict separation of powers is not followed as it is followed in the U.S. But a system of checks and balance has been embedded so much so that the courts are competent to strike down the unconstitutional amendments made by the legislature. The constitution makers have also meticulously defined the functions of various organs of the state. Legislative and executive, which acts the two facets of people’s will have all the powers including that of finance.

There exists clear division between the head of the state and the head of the government. The executive is president; the legislature is Parliament (Lok Sabha and Rajya Sabha) and the judiciary contains Supreme Court, High Courts and other lower courts. Similarly at the level of states, the Governor acts as executive and there exists legislative body at each state.

Relevant Articles

Some of the articles in the Indian constitution which emphasizes the separation of powers are the following:

Article 50

Article 50 puts an obligation over the state to separate the judiciary from the executive. However, Article 50 falls under the Directive Principles of State policy (DPSP) and hence is not enforceable.

Articles 121 and 211

The legislatures cannot discuss the conduct of a judge of the High Court or Supreme Court. They can do so only in matters of impeachment.

Articles 122 and 212

The courts cannot inquire the validity of the proceedings of the legislatures.

Article 361

The President and Governors enjoy immunity from court proceedings.

Checks and balances

The doctrine of separation of powers is a part of the basic structure of the Indian Constitution even though it is not specifically mentioned in it. Hence, no law and amendment can be passed violating it. The system of checks and balances is essential for the proper functioning of three organs of the government. Different organs of the state impose checks and balances on the other. The following examples illustrate the checks and balances:

• Judiciary exercises judicial review over legislative and executive actions. Judiciary has the power to void laws passed by the Parliament. Similarly, it can declare the unconstitutional executive actions as void.
• Legislatures review the functioning of the executive.
• Executive appoints the judges.
• Legislative branch removes the judges. It can also alter the basis of the judgment while adhering to the constitutional limitation.

Checks and balances acts in such a way that no organ of the state becomes too powerful.  The constitution of India makes sure that the discretionary power bestowed upon any organ of the state does not breach the principles of democracy. For instance, the legislature can impeach judges but as per the condition i.e. two third majority.

Judicial Pronouncements

In Keshavanand Bharti case (1973), the Supreme Court held that the amending power of the Parliament is subject to the basic features of the constitution. So, any amendment violating the basic features will be held unconstitutional. This scheme cannot be altered by even resorting to Art.368 of the constitution.

In Ram Jawaya v. Punjab (1955) case, the Supreme Court held up the observation that the executive is derived from the legislature and is dependent on it for its legitimacy. Cabinet ministers in India both executive and legislative functions. Art. 74(1) gives the upper hand to the cabinet ministers over the executive by making their aid and advice mandatory for the President, who is the formal head of the State.

In Indira Nehri Gandhi v. Raj Narain (1975) case, the Supreme Court held that adjudication of a dispute is a judicial function and parliament cannot even under constitutional amending power is competent to exercise this function.

In Swaran Singh case (1998) the Supreme Court declared the Governor’s pardon of a convict unconstitutional.

In subsequent judgments, the Supreme Court upheld the rulings of the Keshavananda Bharti case regarding the non-amend ability of the basic features of the Constitution and strict adherence to the doctrine of separation of powers.

Constituent assembly and the separation of powers

There were primarily two reasons for non insertion of separation of powers in the constitution:

• It was felt that it was too late to make amends as the constitution was already drafted and bringing the amendment inserting the principle of separation of powers would bring in change to the structure of the constitution.
• Since, British system of parliamentary form of government was adopted, it was thought it would be better to avoid adopting complete separation of powers as in the American system.

Independence of Judiciary and separation of powers

Independence of Judiciary guarantees fair and neutral judicial system without the interference or influence by the executive and legislative branches of the government. The concept of independence of judiciary was derived from the England. The Hampden’s case (1637) and Coke’s (1616) case helped to secure judicial independence.

In India, during pre-independence times, the criminal magistracy was placed under the direct control of the executive. Executive control of judiciary will breach the rule of law and result may be that the rights of the citizens may be compromised. Article 50 of the constitution puts an obligation over the state to separate the judiciary from the executive. In India, independence of judiciary basically limited to delivering justice. Other things pertaining to the judiciary like salary, allowances, privileges, jurisdiction, appointment and impeachment of jufges are left with Parliament and the executive. Independence of judiciary has been made as a basic structure of the constitution. This was observed in the S.K. Gupta v. President of India (1981) case.

Legislature Versus Judiciary

In India, there exists tug of war between the Judiciary and Legislature on certain issues. Judiciary has striked down certain laws passed by the Legislature terming them ultra vires. The Legislature, for its part has objected to the concept of Judicial Activism and sometimes frames fresh piece of legislation to circumvent the objection raised by the judiciary.  It is generally held that the concept of judicial activism outs the doctrine of separation of powers.

In many instances in the past, the courts have issued laws and policies through their judgments. Some of the prominent examples are:

• Vishakha case where the Supreme Court issued guidelines on sexual harassment.
• In 2010, it directed the government to distribute food grains.
• Recently, it also appointed a Special investigation Team (SIT) to replace the High Level Committee constituted by the government for investigating the issue of black money deposits in Swiss Banks.

However, it is often alleged that the judiciary crosses its territory pertaining to the Legislature or executive and is termed as judicial overreach or judicial adventurism.

At the same time, there are also instances of the legislature reversing the outcome of some of the judgments.  For instance, in the Commissioner of Customs vs. Sayed Ali in 2011 case, imposition of some duties retrospectively by the Customs Amendment and Validation Bill, 2011 was challenged in the Supreme Court. The Supreme Court struck down the levy of duties. In order to circumvent that judgment, the Parliament passed Customs Bill, 2011 and amended the provisions to levy duties retrospectively even in those which was earlier struck down by the Supreme Court. Similarly, Essential Commodities (Amendment) Ordinance, 2009 was passed by the Parliament to overrule the Supreme Courts judgment regarding the purchase of sugar by the government from the mill.

As the doctrine of separation of powers is not codified in the constitution, there is a necessity that each pillar of the State to evolve a healthy trend that respects the powers and responsibilities of other organs of the government.